A worker is a worker, whether in a factory, office building, field, mine or behind bars. All workers should have the right to a union. Workers need a union in order to minimize – since present social relations will not allow elimination – the great power imbalance between bosses and workers. Where the power imbalance is the greatest, so is the need for a union. Workers in jail are the most vulnerable workers in our society, facing the enormous power imbalance of having a boss who is also their jailor. Despite the imbalance, inmate workers have so far not succeeded in winning the right to a union. In this post, I will cover the fundamental right of workers to a union, how and why inmate workers have been denied this right and explain why a proper application of current employment and labour law should empower inmate workers to succeed in unionization.
I am going to limit the scope of what I am discussing below to federal inmate workers, who number approximately 9,000 in Canada. There is relatively very little inmate labour at provincial institutions, though it is still significant. Unionization has been successful in one case involving inmate workers at a provincial institution, way back in 1977: Amalgamated Meat Cutters. I will return to this case further below when discussing rehabilitation versus work.
The cases referred to in this post are all referenced at the bottom.
The development of collective bargaining rights in SCC jurisprudence
The right of workers to a union is a constitutional right. In the 2007 Supreme Court of Canada (SCC) case of Health Services, the SCC stated that the right to unionize is protected under section 2(d) of the Canadian Charter of Rights and Freedoms, the right to “freedom of association.” Over the years, further content was added to the right to collective bargaining. These pieces have included the right to a grievance procedure while a collective agreement is in place (Fraser), the right of workers to a union of their choice (Mounted Police), and even the right to strike (Saskatchewan Federation of Labour).
It is important to pay attention to why the right to collective bargaining has added content over the years. In Mounted Police, the SCC majority stated (paragraph 51):
As we have seen, s. 2(d) functions to prevent individuals, who alone may be powerless, from being overwhelmed by more powerful entities, while also enhancing their strength through the exercise of collective power. Nowhere are these dual functions of s. 2(d) more pertinent than in labour relations. Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals.
In Saskatchewan Federation of Labour (paragraph 51), the majority stated:
Striking – the “powerhouse” of collective bargaining – also promotes equality in the bargaining process …This Court has long recognized the deep inequalities that structure the relationship between employers and employees, and the vulnerability of employees in this context. In the Alberta Reference, Dickson C.J. observed that:
[t]he role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers.
Other cases at the SCC have said the same, justifying a constitutional right to collectively bargain. The key point is that workers need the right to collectively bargain to have the ability to assert their human dignity in the workplace. “Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy are among the values that underly the Charter”, as was restated in Health Services (paragraph 81)
Inmates collective bargaining rights denied
Federal inmate workers have tried to unionize on at least two occasions over the last decade in cases that went to labour tribunals over unfair labour practices by the employer. The first two attempts were by the same individual, David Jolivet. Mr. Jolivet tried to sign up fellow inmates at the Mountain Institution at Agassiz, British Columbia and was denied access to them. He first went to the Public Service Labour Relations Board (PSLRB: federal public service) to argue that the employer used unfair labour practices by denying him access to potential members, but was shut out by the Board. In the decision, Jolivet v. Treasury Board (Correctional Service of Canada) 2013 PSLRB 1 [Jolivet], the Board decided that the inmate workers were not public service workers because they were not listed by the Public Service Commission (PSC). The Board added that even if the inmate workers were part of the public service, they were not “employees” in any case. Without employee status, there is no right to collective bargaining. The reason for denial of employee status, in the Board’s view, was that the inmate workers were undergoing rehabilitation more so than actual employment.
Mr. Jolivet took a second crack with the Canadian Industrial Relations Board (CIRB: federal private service under the Canada Labour Code), specifically for the CORCAN inmate workers (Canadian Prisoners’ Labour Confederation and Correctional Service Canada, Re 2015 CIRB 779 [Confed]). CORCAN is an agency under the Correctional Service of Canada that employs inmate workers mainly to produces goods and services for federal government departments. Mr. Jolivet and his fellow inmate workers were shut out at the CIRB as well. They argued that the CORCAN workers fell under the Canada Labour Code because CORCAN is a crown corporation. The Board stated that a Crown corporation could only be created by statute or royal charter, which did not exist in the case of CORCAN.
Overcoming the barriers
In the Jolivet decision, the Board ruled that the inmate workers were not listed, therefore were not public service employees. However, the Jolivet decision was made before the SCC’s Mounted Police decision. In Mounted Police, the RCMP workers won a right to be included on the list of public service employees despite having been expressly excluded. The RCMP workers wanted a union of their choice rather than the Staff Relations Representative Committee, which was a labour management body under control of management. RCMP workers were excluded from employee status because the employer thought that RCMP employees with a union of their choice would be compromised in their neutrality, stability, reliability, objectivity and independence. The SCC majority did not see any rational basis on how these values would be compromised through unionization. They held that the RCMP workers were unjustifiably excluded from the exercise of their collective bargaining rights, and that it was underinclusive of s. 2(d) rights to leave them out.
Ironically, a decision that strengthened the rights of RCMP workers ends up useful for inmate workers. If expressly excluded workers can win employee status through the application of s.2(d) of the Charter, so can inmate workers. The major difference is the RCMP workers existed under the Public Service Commission. This difference should not be a barrier since the fundamental outcome of Mounted Police was to take non-employees and turn them into their opposite. If the argument was brought up correctly, it can be quite strong.
While this road is not impassable, it may be very difficult to convince an adjudicator or judge to order inclusion of inmate workers in the federal public service.
The other route, through the Canada Labour Code, was unsuccessful when Mr. Jolivet tried to claim that the inmate workers were employees of a Crown corporation. The requirements for a Crown corporation are a royal charter or creation through statute. CORCAN was not either of those. The other route through the Canada Labour Code is that the inmate workers are part of a “federal work, business or undertaking”, which is inherently under the umbrella of the federal government through s. 91(28) of the Canadian Constitution Act, “The Establishment, Maintenance, and Management of Penitentiaries.” CORCAN workers would fit under this umbrella under two counts. For one, CORCAN operates through the Correctional Service of Canada, as a rehabilitative work program. If the workers are not part of the public service, then they are private sector employees whose work is federal in nature. Secondly, the material they produce is used by other federal government departments, implicating inter-provincial trade and a federal character. In the Confed case, the Canadian Industrial Relations Board said that there is no “residual authority” of that Board to include workers who are excluded from the public service, however, I do not think that is entirely correct. The reason is that every worker has to fit somewhere. I will explain this further below. As for the non-CORCAN workers (all the institutional workers doing the cleaning, cafeteria work, laundry room maintenance, etc), they were not dealt with in the Confed decision. As far as employee status for the purpose of unionization goes, they have not been explicitly excluded from the Canada Labour Code through the common law (to my knowledge).
There is also a recent federal court case, Guerin, which also excludes employee status for CORCAN workers under the Canada Labour Code. I will deal with that case further below, which I believe overshoots in its exclusion of inmate workers from employee status.
The Jolivet decision also excluded inmate workers for not being “employees” due to the rehabilitative character of their work. David Jolivet’s case focused on aspects of employment such as control by the employer, competition for jobs, and other basic details that make an employment relationship. The issue was about control by the employer and whether there was a “real economic benefit” (profit) for the employer through the relationship. The real economic benefit test in Fenton is the test to apply in the case of an employment relationship where there a rehabilitative aspect.
In Jolivet, the Board considered it possible for the inmate workers to be employees, but that the case before it did not meet the test. It considered the possibility largely on the basis of the Amalgamated Meat Cutters case. In Amalgamated Meat Cutters, the Ontario Labour Relations Board found that inmate workers of the Guelph Correctional Centre were employees and they were therefore able to join a union with non-inmate workers at the same meat packing plant. In considering this precedent the Board in Jolivet stated:
It is clear from the foregoing that, for some purposes and in some circumstances, offenders in correctional institutions who participate in work programs could be found to be employees. Evidence of the nature and purpose of the work, the working conditions, and the work’s integration into the employer’s operations, among other factors, would be critical to such a determination. In this case, I do not believe that I have sufficient evidence that would allow such a determination to be made. For example, I have no real evidence of the nature of the work performed by offenders in federal institutions or the integration of that work into the respondent’s operations. On the evidence before me, I could not conclude that offenders are employed rather than participating in work as rehabilitation.
If more evidence had been introduced, the results in Jolivet could have been different. Also, the Board was not provided other examples of employees who were in an employment relationship, but also benefiting in other ways from it. In particular, there is a very close analogy between inmate workers and student workers, who have also been excluded due to being “students rather than employees.” A number of cases have confirmed that it is possible to be both students and employees, in cases involving interns, post doctoral fellows and co-op students (St. Paul’s Hospital (Re) Between: St. Paul’s Hospital (Hospital), and Professional Association of Residents and Interns (Applicant),  B.C.L.R.B.D. No. 43 at 12 [St. Paul’s], University of Toronto (Governing Council),  O.L.R.D. No. 179 at para 107 [U of T Case], Hotwire Electric-All Inc.  O.L.R.D. No. 896).
Another piece that can bolster the case that inmate workers are employees is the fact that they are so vulnerable. In the SCC decision of Re Rizzo and Rizzo Shoes Ltd [Rizzo] (at paragraph 36), the SCC determined that the status of “employee” provided minimum standards, and that the courts should interpret employee status, “in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant.”
Inmate workers are extremely vulnerable. Disciplinary infractions at their prison workplace can result in offences on their records, which if accumulated can result in delays in release or other deprivations, which are allowed by section 40 of the Corrections and Conditional Release Act. Inmate workers also make far below minimum wage and have no other possible employer to work for. They also do not have the advantage of access to media to publicize workplace issues. The law should therefore reach over to them and afford them protection of employee status, which is a fundamental requirement to have the right to unionization.
Every worker is somewhere
This default position is a matter of legal necessity. As soon as the threshold of “employee” has been crossed, inmate workers must fall either under either the federal public service or the federal private sector and if totally excluded from both, should be allowed to certify under the respective provincial labour relations regime. They cannot be rendered legally non-existent simply because the federal government failed to list them under either the federal public service or refuses to allow inclusion under the private service, casting them out from both the Public Service Labour Relations Act and the Canada Labour Code. The federal government cannot make unionization impossible. As stated in the SCC decision of Fraser:
Laws or state actions that substantially interfere with the ability to achieve workplace goals through collective actions have the effect of negating the right of free association and therefore constitute a limit on the s. 2(d) right of free association, which renders the law or action unconstitutional unless it is justified under s. 1 of the Charter.
Total exclusion of the right to unionize, rather than tempering the right, would fail a section 1 Charter analysis, which only allows reasonable limits to Charter rights. Total exclusion is not a reasonable limit, going far beyond the minimal impairment that is allowed.
The Guerin case
In Guerin, the Federal Court had before it an application by inmate workers in CORCAN to contest 30% pay cuts from 2013. The case did not deal with other inmate workers. The inmate workers in Guerin submitted (among other things) that a 30% pay cut was not allowed because they were employees and their pay fell below the minimum standards. The Court considered “employee” status as part of the analysis. In its reasoning, the Court decided that the inmates were not employees because they were in a rehabilitation program, which meant that they could not also be in an employment relationship. The court relied upon two cases, Re Kaszuba and Fenton, but wrongly applied them in my opinion.
In Guerin, the Court reasoned:
 In Re Kaszuba and Salvation Army Sheltered Workshop et al., (1983) 41 OR (2d) 316, the Divisional Court of Ontario approved the following passage from the referee’s decision:
If the substance of the relationship is one of rehabilitation, then the mischief which the Employment Standards Act has been designed to prevent is not present and a finding that there is no employment relationship within the meaning of the Employment Standards Act must be made.
This passage was also specifically approved in Fenton v Forensic Psychiatric Services Commission, (1991) 82 DLR (4th) 27 [Fenton] by the British Columbia Court of Appeal.
 In Fenton, the British Columbia Court of Appeal concluded that the work at the Forensic Psychiatric Institute did not constitute employment within the meaning of the Employment Standards Act. Ultimately, the Court closely examined the goal of the Act and reached the conclusion that, if the work is for the purposes of rehabilitation and training, the minimum employment standards set out in these acts for “employees” cannot be applied to work with a different purpose.
What was actually stated in Fenton was far more tempered than suggested in Guerin:
The defendant relies upon Re Kaszuba v. Salvation Army Sheltered Workshop et al. (1983), 1983 CanLII 1795 (ON SC), 41 O.R. (2d) 316 saying that the work programs at F.P.I. are therapeutic in nature and not employment as such. However, Linden J. states very clearly in Kaszuba that the decision is limited to its facts. He goes on to say further that assisting disabled persons to do useful work will not automatically exempt a sheltered workshop from the operation of the Employment Standards Act, R.S.O. 1980, c. 137, and that there are a number of other relevant factors that should be considered to determine if a rehabilitation relationship exists, such as, (a) the method and amount of payment, (b) profitability of the work, (c) hours of work, (d) various conditions that must be met at work, and (e) the amount and type of counselling.
Neither Re: Kaszuba nor Fenton stand for the position that rehabilitation is mutually exclusive from employment. They state that the overall purpose of the program must be assessed and that an employment relationship may still be found if there are enough indicators of such a relationship despite the rehabilitative aspects. Fenton established the “real economic benefit” test in this light (page 35 of the decision). Very similar reasoning was applied in Amalgamated Meat Cutters and an employment relationship was found in that case, despite the rehabilitative aspects.
The Court in Guerin also stated that CORCAN was a department under Correctional Service of Canada, therefore the Canada Labour Code did not apply, and that if the inmate workers were employees, they would have to apply under the public service. This would leave them in the same position as they were in Jolivet, off the public service list and ineligible (unless such an argument I have suggested above is successful)
If inmate workers are employees, and are not part of the federal public service, they must be part of the federal private sector, and must have access to the Canada Labour Code labour relations regime. If they are denied both, they must fall under the protection of the labour relations regime in whatever province they are in. They cannot continue to be left wandering in the unconstitutional territory in which s. 2(d) of the Charter is entirely unavailable. The exclusion is even more problematic if the employees are vulnerable and in greater need of protective measures, as is the case.
All roads lead to providing inmate workers the opportunity to rectify their circumstances through application of s 2(d) of the Charter. As put by the majority in Health Services:
 The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work.
Amalgamated Meat Cutters & Butcher Workmen v. Guelph Beef Centre Inc, 1977 CanLII 489 (ON LRB) (Amalgamated Meat Cutters)
Canadian Prisoners’ Labour Confederation and Correctional Service Canada, Re 2015 CIRB 779 (Confed)
Fenton v. British Columbia (1991), 56 B.C.L.R. (2d) 170 (B.C.C.A)(Fenton)
Guérin v. Canada (Attorney General), 2018 FC 94 (Guerin)
Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27 (Health Services)
Hotwire Electric-All Inc.,  O.L.R.D. No. 896
Jolivet v. Treasury Board (Correctional Service of Canada) 2013 PSLRB 1 (Jolivet)
Re Kaszuba and Salvation Army Sheltered Workshop et al. 41 O.R. (2d) 316
Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1  1 S.C.R. 3 (Mounted Police)
Ontario (Attorney General) v. Fraser,  2 S.C.R. 3 (Fraser)
Rizzo & Rizzo Shoes Ltd. (Re),  S.C.J. No. 2 (Rizzo Shoes)
Saskatchewan Federation of Labour v. Saskatchewan,  1 S.C.R. 245
St. Paul’s Hospital (Re) Between: St. Paul’s Hospital (Hospital), and Professional Association of Residents and Interns (Applicant),  B.C.L.R.B.D. No. 43